City moves anti-same sex spouse benefits lawsuit to federal court

Mayor Annise Parker and the city of Houston have moved a lawsuit challenging same-sex benefits out of Republican Judge Lisa Millard’s court after she allegedly halted the benefits without giving the city proper notice.

City Attorney David Feldman filed a “Notice of Removal” on Friday saying the lawsuit belongs in U.S. district court instead of state court because it raises federal questions, including the guarantees of equal protection and due process under the U.S. Constitution. The notice of removal says Millard, who presides over the 310th State District Family Court, failed to notify Parker and the city before holding a hearing at 5 p.m. on Dec. 17 — the same day the lawsuit was filed — and issuing an order halting the benefits.

The plaintiffs in the lawsuit, Harris County Republicans Jack Pidgeon and Larry Hicks, allege the same-sex benefits violate the city’s charter and Texas’ bans on same-sex marriage. The plaintiffs are represented by Harris GOP chair Jared Woodfill, an attorney who has said the suit belongs in Millard’s court because it relates to statutes banning same-sex marriage in the Texas Family Code.

According to a legal expert, the notice of removal filed by the city on Friday automatically moves the case into federal court for the time being. To get it back in state court, the plaintiffs would have to ask a federal judge to remand it.

See here and here for the background. The story speculates, and I am inclined to agree, that the purpose of this maneuver is to get this lawsuit joined with the second lawsuit and deal with them both together. How that plays out, since the two lawsuits against the city are asking for the exact opposite things, will be something to watch. PDiddie has more.

I am startled to learn that Judge Lisa Millard did not have both sides before her when she considered and then issued the TRO. Is this standard practice in injunction matters? Or is this extraordinary?

I am also confused why this case, of obvious public interest, is not available on line for viewing at the District Clerk website. The reason stated by court staff is that all family law cases are confidential for 30 days or until the opposing side is served with legal papers, but this reasoning would seem inapplicable to a case in which a party trumpeted the results to the media right away. It is not like a case in which a spouse may be unaware of divorce papers coming his way, or there may be safety concerns for children.

While one can get a TRO without notifying one’s opponent, not having both sides there is practically unheard of in the civil courts where I practice. Even if you’d emailed a copy of the petition without a response (the claim being made, which doesn’t ring particularly true), most judges I know would have you pick up the phone and call – if they didn’t do so themselves – particularly when you know the other side has counsel.